Article III Section 3:
U.S. Constitution

    “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.“

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THE U.S. SUPREME COURT

     Supreme Court Justice Charles Evans Hughes wrote in The Supreme Court of the United States (1966) that the Court “is distinctly American in conception and function, and owes little to prior judicial institutions.”  To understand what the framers of the Constitution envisioned for the Court, another American concept must be considered: the federal form of government.  The Founders provided for both a national government and state governments; the courts of the states were to be bound by federal laws.  However, final interpretation of federal laws could not be left to a state court and certainly not to several state tribunals, whose judgments might disagree.  Thus, the Supreme Court must interpret federal legislation.  Another of the Founders’ intentions was for the federal government to act directly upon individual citizens as well as upon the states.

     Given the Supreme Court’s importance to the U.S. system of government, it was perhaps inevitable that the Court would evoke great controversy.  Charles Warren, a leading student of the Supreme Court, said in The Supreme Court in United States History: “Nothing in the Court’s history is more striking than the fact that while its significant and necessary place in the Federal form of Government has always been recognized by thoughtful and patriotic men, nevertheless, no branch of the Government and no institution under the Constitution has sustained more continuous attack or reached its present position after more vigorous opposition.“

The Court’s First Decade

     George Washington, the first president of the United States, established two important traditions when he appointed the first Supreme Court justices. First, he began the practice of naming to the Court those with whom he was politically compatible. Washington, the only president ever to have an opportunity to appoint the entire federal judiciary, filled federal judgeships, without exception, with faithful members of the Federalist Party. Second, Washington’s appointees offered roughly equal geographic representation on the federal courts. His first six appointees to the Supreme Court included three Northerners and three Southerners.

     The chief justiceship was the most important appointment Washington made. The president felt that the man to head the first Supreme Court should be an eminent lawyer, statesman, executive, and leader. Many names were presented to Washington, and at least one person formally applied for the position. Ultimately, Washington settled upon John Jay of New York. Although only 44 years old, Jay had experience as a lawyer, a judge, and a diplomat. In addition, he was the main drafter of his state’s first constitution.

     The Supreme Court met for the first time on Monday, February 1, 1790, in the Royal Exchange, a building located in the Wall Street section of New York City, and its first session lasted just 10 days. During this period the Court selected a clerk, chose a seal, and admitted several lawyers to practice before it in the future. There were, of course, no cases to be decided; the Court did not rule on a single case during its first three years. In spite of this insignificant and abbreviated beginning, Charles Warren wrote, “The New York and the Philadelphia newspapers described the proceedings of this first session of the Court more fully than any other event connected with the new government; and their accounts were reproduced in the leading papers of all the states.“

     During its first decade the Court decided only about 50 cases. Given the scarcity of Supreme Court business in the early days, Chief Justice Jay’s contributions may be traced primarily to his circuit court decisions and his judicial conduct.

     Perhaps the most important of Jay’s contributions, however, was his insistence that the Supreme Court could not provide legal advice for the executive branch in the form of an advisory opinion. Jay was asked by Treasury Secretary Alexander Hamilton to issue an opinion on the constitutionality of a resolution passed by the Virginia House of Representatives, and President Washington asked Jay for advice on questions relating to his Neutrality Proclamation. In both instances, Jay’s response was a firm “No,” because Article III of the Constitution provides that the Court is to decide only cases pertaining to actual controversies.

The Impact of Chief Justice Marshall

     John Marshall served as chief justice from 1801 to 1835 and dominated the Court to a degree unmatched by any other justice. Marshall’s dominance of the Court enabled him to initiate major changes in the way opinions were presented. Prior to his tenure, the justices ordinarily wrote separate opinions (called “seriatim” opinions – Latin for “one after the other”) in major cases. Under Marshall’s stewardship, the Court adopted the practice of handing down a single opinion. Marshall’s goal was to keep dissension to a minimum. Arguing that dissent undermined the Court’s authority, he tried to persuade the justices to settle their differences privately and then present a united front to the public. Marshall also used his powers to involve the Court in the policy-making process. Early in his tenure as chief justice, for example, the Court asserted its power to declare an act of Congress unconstitutional, in Marbury v. Madison (1803).

     This case had its beginnings in the presidential election of 1800, when Thomas Jefferson defeated John Adams in his bid for reelection. Before leaving office in March 1801, however, Adams and the lame-duck Federalist Congress created several new federal judgeships. To fill these new positions Adams nominated, and the Senate confirmed, loyal Federalists. In addition, Adams named his outgoing secretary of state, John Marshall, to be the new chief justice of the Supreme Court.

     As secretary of state it had been Marshall’s job to deliver the commissions of the newly appointed judges. Time ran out, however, and 17 of the commissions were not delivered before Jefferson’s inauguration. The new president ordered his secretary of state, James Madison, not to deliver the remaining commissions. One of the disappointed nominees was William Marbury. He and three of his colleagues, all confirmed as justices of the peace for the District of Columbia, decided to ask the Supreme Court to force Madison to deliver their commissions. They relied upon Section 13 of the Judiciary Act of 1789, which granted the Supreme Court the authority to issue writs of mandamus – court orders commanding a public official to perform an official, nondiscretionary duty.

     The case placed Marshall in a predicament. Some suggested that he disqualify himself because of his earlier involvement as secretary of state. There was also the question of the Court’s power. If Marshall were to grant the writ, Madison (under Jefferson’s orders) would be almost certain to refuse to deliver the commissions. The Supreme Court would then be powerless to enforce its order. However, if Marshall refused to grant the writ, Jefferson would win by default.

     The decision Marshall fashioned from this seemingly impossible predicament was evidence of sheer genius. He declared Section 13 of the Judiciary Act of 1789 unconstitutional because it granted original jurisdiction to the Supreme Court in excess of that specified in Article III of the Constitution. Thus the Court’s power to review and determine the constitutionality of acts of Congress was established. This decision is rightly seen as one of the single most important decisions the Supreme Court has ever handed down. A few years later the Court also claimed the right of judicial review over actions of state legislatures; during Marshall’s tenure it overturned more than a dozen state laws on constitutional grounds.

The Changing Issue Emphasis of the Supreme Court:

     Until approximately 1865 the legal relationship between the national and state governments, or cases of federalism, dominated the Court’s docket. John Marshall believed in a strong national government and did not hesitate to restrict state policies that interfered with its activities. A case in point is Gibbons v. Ogden (1824), in which the Court overturned a state monopoly over steamboat transportation on the ground that it interfered with national control over interstate commerce. Another good example of Marshall’s use of the Court to expand the federal government’s powers came in McCulloch v. Maryland (1819), in which the chief justice held that the Constitution permitted Congress to establish a national bank. The Court’s insistence on a strong national government did not significantly diminish after Marshall’s death. Roger Taney, who succeeded Marshall as chief justice, served from 1836 to 1864. Although the Court’s position during this period was not as uniformly favorable to the federal government, the Taney Court did not reverse the Marshall Court’s direction.

     During the period 1865-1937 issues of economic regulation dominated the Court’s docket. The shift in emphasis from federalism to economic regulation was brought on by a growing number of national and state laws aimed at monitoring business activities. As such laws increased, so did the number of cases challenging their constitutionality. Early in this period the Court’s position on regulation was mixed, but by the 1920s the bench had become quite hostile toward government regulatory policy. Federal regulations were generally overturned on the ground that they were unsupported by constitutional grants of power to Congress, whereas state laws were thrown out mainly as violations of economic rights protected by the Fourteenth Amendment.

     Since 1937 the Supreme Court has focused on civil liberties concerns – in particular, the constitutional guarantees of freedom of expression and freedom of religion. In addition, an increasing number of cases have dealt with procedural rights of criminal defendants. Finally, the Court has decided a great number of cases concerning equal treatment by the government of racial minorities and other disadvantaged groups.

The Supreme Court as a Policy Maker:

     The Supreme Court’s role as a policy maker derives from the fact that it interprets the law. Public policy issues come before the Court in the form of legal disputes that must be resolved.

     An excellent example may be found in the area of racial equality. In the late 1880s many states enacted laws requiring the separation of African Americans and whites in public facilities. In 1890, for instance, Louisiana enacted a law requiring separate but equal railroad accommodations for African Americans and whites. A challenge came two years later. Homer Plessy, who was one-eighth black, protested against the Louisiana law by refusing to move from a seat in the white car of a train traveling from New Orleans to Covington, Louisiana. Arrested and charged with violating the statute, Plessy contended that the law was unconstitutional. The U.S. Supreme Court, in Plessy v. Ferguson (1896), upheld the Louisiana statute. Thus the Court established the “separate-but-equal” policy that was to reign for about 60 years. During this period many states required that the races sit in different areas of buses, trains, terminals, and theaters; use different restrooms; and drink from different water fountains. African Americans were sometimes excluded from restaurants and public libraries. Perhaps most important, African American students often had to attend inferior schools.

     Separation of the races in public schools was contested in the famous case Brown v. Board of Education (1954). Parents of African American schoolchildren claimed that state laws requiring or permitting segregation deprived them of equal protection of the laws under the Fourteenth Amendment. The Supreme Court ruled that separate educational facilities are inherently unequal and, therefore, segregation constitutes a denial of equal protection. In the Brown decision the Court laid to rest the separate-but-equal doctrine and established a policy of desegregated public schools.

     In an average year the Court decides, with signed opinions, between 80 and 90 cases. Thousands of other cases are disposed of with less than the full treatment. Thus the Court deals at length with a very select set of policy issues that have varied throughout the Court’s history. In a democracy, broad matters of public policy are presumed to be left to the elected representatives of the people – not to judicial appointees with life terms. Thus, in principle U.S. judges are not supposed to make policy. However, in practice judges cannot help but make policy to some extent.

     The Supreme Court, however, differs from legislative and executive policy makers. Especially important is the fact that the Court has no self-starting device. The justices must wait for problems to be brought to them; there can be no judicial policy making if there is no litigation. The president and members of Congress have no such constraints. Moreover, even the most assertive Supreme Court is limited to some extent by the actions of other policy makers, such as lower-court judges, Congress, and the president. The Court depends upon others to implement or carry out its decisions.

The Supreme Court as Final Arbiter:

     The Supreme Court has both original and appellate jurisdiction. Original jurisdiction means that a court has the power to hear a case for the first time. Appellate jurisdiction means that a higher court has the authority to review cases originally decided by a lower court. The Supreme Court is overwhelmingly an appellate court since most of its time is devoted to reviewing decisions of lower courts. It is the highest appellate tribunal in the country. As such, it has the final word in the interpretation of the Constitution, acts of legislative bodies, and treaties – unless the Court’s decision is altered by a constitutional amendment or, in some instances, by an act of Congress.

     Since 1925 a device known as “certiorari” has allowed the Supreme Court to exercise discretion in deciding which cases it should review. Under this method a person may request Supreme Court review of a lower court decision; then the justices determine whether the request should be granted. If review is granted, the Court issues a writ of certiorari, which is an order to the lower court to send up a complete record of the case. When certiorari is denied, the decision of the lower court stands.

The Supreme Court at Work:

     The formal session of the Supreme Court lasts from the first Monday in October until the business of the term is completed, usually in late June or July. Since 1935 the Supreme Court has had its own building in Washington, D.C. The imposing five-story marble building has the words “Equal Justice Under Law” carved above the entrance. It stands across the street from the U.S. Capitol. Formal sessions of the Court are held in a large courtroom that seats 300 people. At the front of the courtroom is the bench where the justices are seated. When the Court is in session, the chief justice, followed by the eight associate justices in order of seniority, enters through the purple draperies behind the bench and takes a seat. Seats are arranged according to seniority with the chief justice in the center, the senior associate justice on the chief justice’s right, the second-ranking associate justice on the left, and continuing alternately in declining order of seniority. Near the courtroom are the conference room where the justices decide cases and the chambers that contain offices for the justices and their staffs.

     The Court’s term is divided into sittings of approximately two weeks each, during which it meets in open session and holds internal conferences, and recesses, during which the justices work behind closed doors as they consider cases and write opinions. The 80 to 90 cases per term that receive the Court’s full treatment follow a fairly routine pattern.

     Oral Argument. Oral arguments are generally scheduled on Monday through Wednesday during the sittings. The sessions run from 10:00 a.m. until noon and from 1:00 until 3:00 p.m. Because the procedure is not a trial or the original hearing of a case, no jury is assembled and no witnesses are called. Instead, the two opposing attorneys present their arguments to the justices. The general practice is to allow 30 minutes for each side, although the Court may decide that additional time is necessary. The Court can normally hear four cases in one day. Attorneys presenting oral arguments are frequently interrupted with questions from the justices. The oral argument is considered very important by both attorneys and justices because it is the only stage in the process that allows such personal exchanges.

     The Conference. On Fridays preceding the two-week sittings the Court holds conferences; during sittings it holds conferences on Wednesday afternoon and all day Friday. At the Wednesday meeting the justices discuss the cases argued on Monday. At the Friday conference they discuss the cases that were argued on Tuesday and Wednesday, plus any other matters that need to be considered. The most important of these other matters are the certiorari petitions.

     Prior to the Friday conference each justice is given a list of the cases that will be discussed. The conference begins at about 9:30 or 10:00 a.m. and runs until 5:30 or 6:00 p.m. As the justices enter the conference room they shake hands and take their seats around a rectangular table. They meet behind locked doors, and no official record is kept of the discussions. The chief justice presides over the conference and offers an opinion first in each case. The other justices follow in descending order of seniority.

     A quorum for a decision on a case is six members; obtaining a quorum is seldom difficult. Cases are sometimes decided by fewer than nine justices because of vacancies, illnesses, or nonparticipation resulting from possible conflicts of interest. Supreme Court decisions are made by a majority vote. In case of a tie the lower-court decision is upheld.

     Opinion Writing. After a tentative decision has been reached in conference, the next step is to assign the Court’s opinion to an individual justice. The chief justice, if voting with the majority, either writes the opinion or assigns it to another justice who voted with the majority. When the chief justice votes with the minority, the most senior justice in the majority makes the assignment.

     After the conference the justice who will write the Court’s opinion begins work on an initial draft. Other justices may work on the case by writing alternative opinions. The completed opinion is circulated to justices in both the majority and the minority groups. The writer seeks to persuade justices originally in the minority to change their votes, and to keep his or her majority group intact. A bargaining process occurs, and the wording of the opinion may be changed in order to satisfy other justices or obtain their support. A deep division in the Court makes it difficult to achieve a clear, coherent opinion and may even result in a shift in votes or in another justice’s opinion becoming the Court’s official ruling.

     In most cases a single opinion does obtain majority support, although few rulings are unanimous. Those who disagree with the opinion of the Court are said to dissent. A dissent does not have to be accompanied by an opinion; in recent years, however, it usually has been. Whenever more than one justice dissents, each may write an opinion or all may join in a single opinion.

     On occasion a justice will agree with the Court’s decision but differ in his or her reason for reaching that conclusion. Such a justice may write what is called a concurring opinion.  An opinion labeled “concurring and dissenting” agrees with part of a Court ruling but disagrees with other parts. Finally, the Court occasionally issues a per curiam opinion – an unsigned opinion that is usually quite brief. Such opinions are often used when the Court accepts the case for review but gives it less than full treatment.  For example, it may decide the case without benefit of oral argument and issue a per curiam opinion to explain the disposition of the case. [1]